NYCLU Hails Decision By Federal Court Recognizing Right Of Church To Allow Homeless to Sleep On Church Property

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK —————————————————————X FIFTH AVENUE PRESBYTERIAN CHURCH, GLADYS ESCALERA, NICHOLAS NESRON, WILLIAM P. RASMUSSEN, DONALD J. ROBISON, VERONICA A. LESTER, ALFRED MCKENZIE, ALFRED BROWN, DENNIS PAIGE, PEABODY DENNIS, STEFAN PARY, and MARGARET SHAFER, 01 Civ. 11493 (LMM) Plaintiffs, – versus – THE CITY OF NEW YORK, BERNARD KERIK, and RUDOLPH GIULIANI, Defendants. —————————————————————X REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ REQUEST FOR A TEMPORARY RESTRAINING ORDER NEW YORK CIVIL LIBERTIES UNION FOUNDATION, by CHRISTOPHER DUNN ARTHUR EISENBERG 125 Broad Street, 17th Floor New York, New York 10004 (212) 344-3005 THE LAW OFFICES OF JONATHAN ROBERT NELSON, by JONATHAN ROBERT NELSON 20 Exchange Place, 43rd Floor New York, N.Y. 10005 (212) 593-5775 Dated: December 19, 2001 New York, N.Y. Counsel for the Plaintiffs INTRODUCTION The plaintiffs seek a temporary restraining order enjoining the defendants from entering upon church property and threatening to arrest homeless persons who are sleeping on that property with the consent of the church. Because they did not file a memorandum of law with their initial submissions, the plaintiffs submit this brief memorandum in reply to the memorandum the defendants have filed. STATEMENT OF FACTS The facts underlying this controversy are set out in the affidavits already submitted by the plaintiffs, and the plaintiffs do not repeat them here. Rather, they simply emphasize three points particularly germane to the plaintiffs’ request for a temporary restraining order. First, it is undisputed that all of the activity at issue in this case is taking place on the private property of the plaintiff Fifth Avenue Presbyterian Church, whether that property be the stairs adjoining the Church or the paved area between the southern wall of the Church on 55th Street and the public sidewalk that abuts upon that paved area. The plaintiff church authorizes the homeless plaintiffs to sleep only on that private property, and the homeless plaintiffs seek to sleep only on that property. None of the plaintiffs seek to engage in any conduct on the public sidewalk that borders the Church’s property. Second, the Fifth Avenue Presbyterian Church is providing services to the homeless as an important part of its religious mission. See Affidavit of Margaret Schafer 7-10 (Dec. 17, 2001); Affidavit of Margaret Shafer 2-9 (Dec. 19, 2001). As Senior Reverend Tewell stated in his December 5th letter to NYPD Commissioner Kerik, “[H]omeless people are sleeping around our church with our permission. Working with this under-served population is a vital-part of our ministry.” Letter from Reverend Thomas K. Tewell to Commissioner Bernard Kerik (Dec. 5, 2001) (attached as Exhibit I to affidavit of Margaret Shafer). Finally, homeless people have been sleeping on the Church’s property on 55th Street for many years with the full knowledge of the New York City Police Department without incident. See Affidavit of Margaret Shafer 15-20. Indeed, following a contentious City Council hearing in November 1999 about arrests of the homeless, The New York Times, in a story that discussed the Fifth Avenue Presbyterian Church’s homeless-outreach efforts, reported the following about former NYPD Commissioner Howard Safir: After the hearing, Mr. Safir said that some churches had asked him not to arrest homeless people sleeping on their property. “I know there are a number of churches on both the East and West Side that do encourage homeless to sleep on their steps,” he said. “That’s private property. They are entitled to encourage anybody they want to be there, and we certainly are not going to interfere with that. D. Herszenhorn, “Safir Defends Efforts to Keep Homeless of Streets at Night,” N.Y. Times, Nov. 25, 1999 (attached as Exhibit G to affidavit of Margaret Shafer). THE PLAINTIFFS ARE ENTITLED TO A TEMPORARY RESTRAINING ORDER For purposes of their request for a temporary restraining order, the plaintiffs proceed on two straightforward theories. First, the plaintiff Fifth Avenue Presbyterian Church has a First Amendment right to allow the homeless to sleep on its property as part of its religious activities. Second, the homeless plaintiffs have a due-process liberty right not to being arrested (or threatening with arrest) for sleeping on church property when nothing in the law makes it a crime for them to do so with the permission of the Church. Notwithstanding the fact that the City has had full knowledge of the Church’s allowing the homeless to sleep on its property for over two years, the defendants now counter with four principal propositions: (1) They assert that the Church’s program is not protected by the First Amendment; (2) they contend that the church is violating New York City rules and regulations concerning the operation of shelters; (3) they contend that the plaintiffs’ conduct amounts to a public nuisance; and (4) they contend that the use of cardboard boxes and tents by the homeless plaintiffs violates section 16-122 of the City’s Administrative Code. After touching on the standards governing the plaintiffs’ request for a temporary restraining order, the plaintiffs briefly address each of these contentions in order. A. The Standards Governing Preliminary Injunctions in First Amendment Disputes Are Well-Established. The parties generally agree on the standards governing the plaintiffs’ request for a temporary restraining order, which are the same standards governing requests for preliminary injunctions. As a general matter, to obtain such relief, an applicant must establish “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Deeper Life Christian Fellowship, Inc. v. Board of Education, 852 F.2d 676, 679 (2d Cir. 1988). However, in the context of a First Amendment challenge seeking to stay government action taken in the public interest, the standard is slightly different, as the Second Circuit recently explained in affirming a issuance of a preliminary injunction involving First Amendment expressive activity, Where, as here, a moving party seeks a preliminary injunction to stay government action taken in the public interest pursuant to a statutory or regulatory scheme, that party must show irreparable harm in the absence of an injunction and a likelihood of success on the merits. Latino Officers Assoc. v. City of New York, 196 F.3d 458, 462 (2d Cir. 1999) (citing cases), cert. denied, 528 U.S. 1159 (2000). And as the Second Circuit noted in Latino Officers Association, “Violations of First Amendment rights ‘are commonly considered irreparable injuries for purposes of a preliminary injunction.’” 196 F.3d at 462 (quoting Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997). Consequently, the plaintiffs are entitled to a temporary restraining order if they can establish a likelihood of success on the merits of their First Amendment claim. B. The Church’s Provision of Homeless Services As Part of Its Religious Program Is Protected by the First Amendment’s Free Exercise Clause. Given the fact that its homeless-services program is an integral part of the Church’s religious work, this program is protected by the Free Exercise Clause of the First Amendment, as two other District Courts have held in similar circumstances. For instance, in Stuart Circle Parish v. Board of Zoning Appeals, six churches sought and obtained a temporary restraining order against a municipal zoning agency that had sought to halt a feeding program the churches operated to help the homeless. See 946 F.Supp. 1225, 1228 (E.D. Va. 1996). After reviewing evidence that explained how the program was part of the churches’ religious mission, the court readily found that the program was protected by the Free Exercise Clause. See id. at 1236-37. A similar situation presented itself in Western Presbyterian Church Board of Zoning Adjustment, where another Presbyterian Church sought a preliminary injunction against a zoning decision that declared a homeless food program operated by the church to be a prohibited use requiring a zoning variance. See 849 F.Supp. 77, 78 (D.D.C. 1994). In granting the church’s motion and relying on the First Amendment, the District Court concluded, “It seems to the court that blocking the Church’s program to feed the poor and homeless would substantially burden plaintiffs’ right to the free exercise of religion.” See id. at 79. In subsequently granting summary judgment to the church, the court reviewed evidence about the role of the program in the church’s religious work and reaffirmed its conclusion that operation of the program was protected by the Free Exercise Clause. See Western Presbyterian Church Board of Zoning Adjustment 862 F.Supp. 538, 544, 545-46 (D.D.C. 1994). Without acknowledging these cases — indeed, without citing any cases — the defendants nonetheless contend that the Church’s program does not implicate the First Amendment because, according to the defendants, the Church could carry out its religious mission in other ways. See Defendants’ Brief at 4-5. Setting aside the fact that the Church is allowing the homeless to sleep on its property only because its indoor shelter is at capacity and only because the Church has concluded that the arrangement is a necessary one, the City’s argument simply misses the point. Nothing in First Amendment jurisprudence suggests that burdens placed on the exercise of a church’s religious freedoms do not implicate the First Amendment when the government believes that the church could carry out its mission in other ways. It is for the Church, not the government, to decide how the Church exercises its religious beliefs. The defendants’ dispersal of the homeless from the property of the Fifth Avenue Presbyterian Church violates the Church’s rights under the Free Exercise Clause. Given this, the plaintiffs also satisfy the requirement of a showing of irreparable harm. C. The New York State Social Services Regulations Provide No Justification for the Defendants’ Actions. The defendants contend that their actions are legally justified in light of the requirements of sections 485 and 491 of Title 18 of the New York City Rules and Regulations. According to the defendants, those rules provide that shelters are adult-care facilities that “must comply with the chapter’s regulations or cease operation.” Defendants’ Brief at 6-7 (citing regulations). Though the defendants may accurately describe the regulations, these regulations provide no lawful basis for the defendants’ actions. As an initial matter, the defendants have failed to meet their threshold burden of identifying anything in the regulations or relevant case law that establishes that the act of allowing persons to sleep outdoors on property adjacent to a building amounts to operation of an adult care facility so as to bring that activity within the rules. More important perhaps, even with respect to adult-care facilities that fall within the purview of the regulations, the regulations provide a clear enforcement scheme, and that scheme simply provides that certain government agencies may initiate civil proceedings against the operator of a facility to enforce the requirements of parts 485 and 491 and ultimately, if necessary, to close the facility. See 18 N.Y.C.R.R. § 486.4. Nothing in this arrangement makes it a crime for a person to sleep in a noncomplying facility. Given this, even if the Church’s allowing the homeless to sleep on its outside property somehow could be construed as operating a shelter subject to these rules, the most that could happen is that the Church could be subject to a civil, administrative proceeding to enforce the rules. The defendants even seem to concede this by recognizing that facilities must comply with the regulations “or cease operation.” Defendants’ Brief at 7. As for the homeless individuals who happen to be sleeping on the Church’s property, these regulations afford the NYPD no authority to take any action against them, much less to arrest them. Such arrests — or the threat of such — are entirely without legal authority and thus violate the due-process liberty rights of the homeless plaintiffs. See, e.g., Pottinger v. City of Miami, 810 F. Supp. 1551, 1565-67 (S.D. Fla. 1992) (discussing evidence establishing that police were arresting homeless persons without justification and subsequently concluding, at page 1583, “that the City’s practice of arresting homeless individuals for performing inoffensive conduct in public when they have no place to go . . . is overbroad to the extent it reaches innocent acts in violation of the due process clause of the fourteenth amendment.”). D. Public Nuisance Considerations Provide No Justification for the Defendants’ Actions. The defendants next contend that “in failing to comply with New York State Social Services regulations” the plaintiffs have “created a public nuisance that the City of New York is authorized to abate.” Defendants’ Brief at 8. Public nuisance law provides no justification for the defendants’ actions. First, for the reasons noted above, the defendants have failed to establish that the Church’s allowing homeless persons to sleep outside its building is even subject to the Social Services regulations. Second, the case on which the defendants rely, Greentree at Murray Hill Condo v. Good Shepard Episcopal Church, 550 N.Y.S.2d 981 (N.Y. Sup. Ct. 1989), is one in which a private party brought a civil action seeking to enjoin a church from operating a homeless shelter on its property, and the court rejected the claim that operation of the shelter amounted to a public nuisance. See id. at 988. The defendants cite no cases that holds that actions such as those at issue here constitute a public nuisance. Third, the suggestion that the Church is endangering the health and welfare of the homeless is belied by the City’s own statistics, which indicate that for the last two nights City shelters for men have been at over 99% capacity. See Affidavit of Margaret Shafer 20 (Dec. 19, 2001). Moreover, even in circumstances in which a public nuisance does exist, the City has identified no authority that allows it to arrest persons associated with that nuisance. Rather, it appears that the appropriate procedure is to bring a civil proceeding to abate the nuisance. See, e.g., Greentree at Murray Hill, 550 N.Y.S.2d at 988 (in rejecting public nuisance claim by private party, stating that “the proper party to bring suit to abate a public nuisance is the attorney general or the chief executive officer of a county or town”); N.Y. Admin. Code § 7-704 and 7-705 (discussing civil injunctive remedies available to abate public nuisances). N.Y. Admin. Code § 17-143 (providing that “willful omission or refusal of any individual, corporation or body to forthwith abate any nuisance, as ordered by the department [of health] or board, such order having been duly served upon them, shall be a misdemeanor”). Finally, the defendants’ suggestion that their nuisance claim somehow is enhanced because the Church has allowed the property in question to function as a “public place,” see Defendants’ Brief at 9-10, simply ignores the undisputed facts before the court, which show that the Church has exercised domain over that property for many years. First, it has allowed the homeless to sleep on the property for two years, which of course has precluded public use of the property. See Shafer Affidavit 15-17. Second, it has conspicuously marked the sidewalk with tape demarcating its property line. See id. 16(a)(ii). Finally, for many years the Church had placed planters on this property, see Affidavit of Margaret Shafer 18 (Dec. 19, 2001), further making it clear that the Church was not opening its property to unrestricted public use. The consistent and long-time actions of the Church foreclose the suggestion that it somehow has forfeited its control over the property in question. E. Section 16-122(b) of The Administrative Code Provides No Justification for the Defendants’ Actions. Finally, the defendants suggest that their actions are supported by section 16-122(b) of the New York City Administrative Code. See Defendants’ Brief at 11. Even if, arguendo, this provision bars the erection of tents and boxes on public property, that has no bearing on this controversy for two reasons. First, as noted, the homeless plaintiffs are sleeping only on the private property of the church, and thus it is only on that property that any boxes or tents are being erected. The defendants point to nothing in section 16-122(b) or to any interpretative case law that holds that the section’s prohibition extends to private property. In fact, the case cited by the defendants involved a homeless person arrested under section 16-122 because he had been found sleeping in a cardboard box on a bench in a New York City park. See Betancourt v. Giuliani, 2000 WL 1877071, *1 (S.D.N.Y., Dec. 26, 2000), appeal pending. Just as the Church can (and for years did) have planters on this property or could erect other structures on this property (such as a entry ramp for the disabled), the homeless people who it permits to sleep on that property can place tents or boxes on it without running afoul of section 16-122(b). Second, even if section 16-122(b) did apply to private property, it would not allow the NYPD to disperse all homeless persons from the area, as it has been doing. Rather, it would allow the Department only to take appropriate action against those persons with tents or boxes in violation of section 16-122(b). F. The Public Interest Favors Granting the Relief Sought by the Plaintiffs. Finally, the public interest favors granting the temporary restraining order. The interests advanced by the defendants are substantially undermined by the fact that they knowingly have allowed this activity to take place for over two years. Conversely, the plaintiffs are providing an important service for people in our city who are in dire circumstances. See, e.g., Stuart Circle, 946 F. Supp. at 1236 (in granting temporary restraining order, holding that City’s having allowed homeless-services program to continue for some time before moving to halt it showed City would not be harmed); Western Presbyterian Church, 849 F. Supp. at 79 (in granting preliminary injunction, pointing to history of program and importance of serving the homeless). CONCLUSION For all the foregoing reasons, the plaintiffs urge the court to grant their request for a temporary restraining order. Respectfully submitted, THE LAW OFFICES OF JONATHAN ROBERT NELSON JONATHAN ROBERT NELSON 20 Exchange Place, 43rd Floor New York, N.Y. 10005 (212) 593-5775 NEW YORK CIVIL LIBERTIES UNION FOUNDATION __________________________________ CHRISTOPHER DUNN (CD-3991) ARTHUR EISENBERG 125 Broad Street, 17th Floor New York, N.Y. 10004 (212) 344-3005, ext. 226 Of Counsel: Katherine L. Pringle FRIEDMAN KAPLAN SEILER & ADELMAN, LLP 875 Third Avenue New York, N.Y. 10022 Dated: December 19, 2001 New York, N.Y. CERTIFICATE OF SERVICE I hereby certify that on January 8, 2002, I caused the attached Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion For a Temporary Restraining Order and Preliminary Injunction to served by facsimile and by United States First Class Mail on the following counsel of record: Daniel Connolly Special Counsel New York Law Department 59 Maiden Lane New York, N.Y. 100038 FAX: (212) 232-4621 __________________________ CHRISTOPHER DUNN UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK —————————————————————x FIFTH AVENUE PRESBYTERIAN CHURCH, GLADYS ESCALERA, NICHOLAS NESRON, WILLIAM P. RASMUSSEN, DONALD J. ROBISON, VERONICA A. LESTER, ALFRED MCKENZIE, ALFRED BROWN, DENNIS PAIGE, PEABODY DENNIS, STEFAN PARY, and MARGARET SHAFER, 01 Civ. 11493 (LMM) Plaintiffs, – versus – THE CITY OF NEW YORK, BERNARD KERIK, and RUDOLPH GIULIANI, Defendants. —————————————————————x PLAINTIFFS’ MEMORANDUM IN SUPPORT OF PLAINTIFFS’ REQUEST FOR A PRELIMINARY INJUNCTION NEW YORK CIVIL LIBERTIES UNION FOUNDATION CHRISTOPHER DUNN ARTHUR EISENBERG 125 Broad Street, 17th Floor New York, N.Y. 10004 THE LAW OFFICES OF JONATHAN ROBERT NELSON JONATHAN ROBERT NELSON 20 Exchange Place, 43rd Floor New York, N.Y. 10005 Dated: December 27, 2001 New York, N.Y. TABLE OF CONTENTS STATEMENT OF THE CASE THE PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION 1. The Standards Governing Preliminary Injunctions in First Amendment Disputes Are Well-Established. B. The Church’s Provision of Homeless Services As Part of Its Religious Program Is Protected by the First Amendment’s Free Exercise Clause. C. The Defendants Have Failed to Identify Any Legally Sufficient Basis for Abridging the Church’s Free Exercise Rights. 1. The New York State Social Services Regulations Provide No Justification for the Defendants’ Actions. 2. Public Nuisance Considerations Provide No Justification for the Defendants’ Actions. 3. Section 16-122(b) of The Administrative Code Provides No Justification for the Defendants’ Actions. CONCLUSION PLAINTIFFS’ MEMORANDUM IN SUPPORT OF PLAINTIFFS’ REQUEST FOR A PRELIMINARY INJUNCTION The plaintiffs request that the court convert the temporary restraining order issued on December 19, 2001, into a preliminary injunction. In support of their request, the plaintiffs submit this memorandum of law to supplement the memorandum they submitted on December 19th in conjunction with the temporary-restraining-order proceedings. STATEMENT OF THE CASE Though the plaintiffs have served additional affidavits in anticipation of the preliminary-injunction hearing, the essential facts of the case remain unchanged. First and foremost, this remains a case about the right of the Fifth Avenue Presbyterian Church to allow homeless people to sleep on its private property as part of the Church’s religious mission. At this juncture of the case the City concedes that all of the activity at question is taking place on the Church’s private property, which consists of five church stairways (and their landings) and a rectangular flat area at sidewalk level that extends approximately five feet from the southern wall of the Church along 55th Street. Concomitantly, none of the plaintiffs seek to engage in any activity on any public property, including the public sidewalk that runs along 55th Street south of the Church’s building and adjoining property. That sidewalk, which is wholly unobstructed by the activity at issue here, is more than thirteen feet wide. See Affidavit of Thomas Piciocco (Dec. 27, 2001). Finally, since the issuance of the temporary restraining order, homeless persons have continued to sleep on the Church’s property without incident. Affidavit of Margaret Shafer 5 (Dec. 27, 2001). This simply marks a continuation of the situation that existed for over two years prior to the events that gave rise to this controversy. See Affidavit of Margaret Shafer 18-20 (Dec. 17, 2001). Though the general factual situation remains the same, two points need to be addressed in light of the City’s arguments to the court at the hearing on the temporary restraining order. First, the defendants emphasized at the hearing that no homeless person had been arrested for sleeping at the Church, suggesting that this case really was about nothing more than the right of the City to offer voluntary services to the homeless sleeping on Church property. See Transcript at 31-34. This is incorrect. While it is true that no homeless person at the Church was arrested, that was only because the homeless left when ordered by the police to disperse or face arrest. See Affidavit of Margaret Shafer 23, 26-33 (Dec. 17, 2001). The Church fully supports efforts by the City to provide truly voluntary services to the homeless and never has objected to City personnel entering onto its property to offer such services. See Affidavit of Margaret Shafer 7 (Dec. 27, 2001). What the Church objects to is the NYPD ordering those who choose not to accept those services to leave Church property at the risk of arrest. Second, the City has devoted considerable energy to the proposition that the Church wrongfully is encouraging homeless people to sleep on its sidewalk, going so far as to contend that the Church is operating “the world’s worst homeless shelter.” Transcript at 23. This fundamentally mischaracterizes the Church’s program. The objective of the program is to help get the homeless off the street, and in just the last year the Church has managed to help 77 homeless persons do just that. See Affidavit of Margaret Shafer 17 (Dec. 17, 2001). Nonetheless, the Church recognizes that some homeless people, because they are service-resistant or for other reasons, simply will end up on the street, regardless of the availability of City services. See, e.g., Affidavit of Margaret Shafer 11-14 (Dec. 17, 2001). In light of this unfortunate reality, the Church is doing nothing more than trying to provide a refuge of sorts for those people, believing that they will be safer sleeping with others on the Church’s property rather than wandering to other outdoor locations in the City. THE PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION The plaintiffs seek the same substantive relief they obtained through the temporary restraining order: an order enjoining the defendants from entering upon the Church’s property for the purpose of dispersing or arresting homeless persons sleeping or otherwise lawfully on that property with the permission of the Church. Since the parties are making simultaneous filings and since the City has not informed the plaintiffs of any new legal theories upon which the City rests its position, the plaintiffs in this memorandum amplify on the issues previously presented to the court. A. The Standards Governing Preliminary Injunctions in First Amendment Disputes Are Well-Established. The legal standard governing the plaintiffs’ request for a preliminary injunction, which seeks to stay government action taken in the public interest, is well-established. As the Second Circuit recently explained in affirming such a preliminary injunction, Where, as here, a moving party seeks a preliminary injunction to stay government action taken in the public interest pursuant to a statutory or regulatory scheme, that party must show irreparable harm in the absence of an injunction and a likelihood of success on the merits. Latino Officers Assoc. v. City of New York, 196 F.3d 458, 462 (2d Cir. 1999) (citing cases), cert. denied, 528 U.S. 1159 (2000). Since “[v]iolations of First Amendment rights are commonly considered irreparable injuries for purposes of a preliminary injunction,” Latino Officers Assoc., 196 F.3d at 462 (internal quotation and citation omitted), the propriety of a preliminary injunction in a case such as this turns on whether the plaintiffs can establish a likelihood of success on the merits of their First Amendment claim. The defendants’ contention that a more demanding standard controls here and that the plaintiffs must demonstrate a “clear” or “substantial” showing of success on the merits is incorrect. That standard applies when plaintiffs seek “mandatory” injunctions or seek injunctions that, if granted, would deprive the defendant of an opportunity to contest the injunction (as in those situations in which the injunction seeks the right for a one-time event to take place). See Million Youth March, Inc. v. Safir, 18 F. Supp.2d 334, 339 (S.D.N.Y. 1998) (in granting preliminary injunction on behalf of protesters seeking to have single event, applying heightened standard because granting injunction would grant plaintiffs all the relief they sought); See also Metropolitan Council v. Giuliani, 99 F. Supp.2d 438, 442-43 (S.D.N.Y. 2000) (in granting preliminary injunction on behalf of protesters seeking to sleep on public sidewalk, discussing mandatory injunctions). Here, the plaintiffs do not seek an order that would mandate that the defendants undertake any affirmative action (such as issue a permit); instead, they seek only to maintain the status quo ante that has existed for over two years and to prohibit the defendants from entering the Church’s property for the purposes of dispersing or arresting homeless persons sleeping on that property with the permission of the Church. Moreover, nothing about the granting of a preliminary injunction would afford the plaintiffs all the relief they seek, as the Church fully intends to continue its practice and fully intends to seek a permanent injunction allowing it do so; the defendants thus will have ample opportunity to litigate the merits of the plaintiffs’ claims in future proceedings. Given all this, the higher standard concerning certain preliminary injunctions does not apply in this case, and the plaintiffs need only demonstrate a likelihood of success on the merits of their First Amendment claim. B. The Church’s Provision of Homeless Services As Part of Its Religious Program is Protected by the First Amendment’s Free Exercise Clause. As set out in detail in the affidavits of Margaret Shafer, the Fifth Avenue Presbyterian Church’s decision to allow the homeless to sleep on its property is an integral part of the Church’s religious work. See Affidavit of Margaret Shafer 7-10 (Dec. 17, 2001); Affidavit of Margaret Shafer 2-9 (Dec. 19, 2001). This activity therefore is protected by the Free Exercise Clause of the First Amendment, as the plaintiffs discussed in their original memorandum. See Reply Memorandum in Support of Plaintiffs’ Request For a Temporary Restraining Order at 4-6 (citing and discussing Stuart Circle Parish v. Board of Zoning Appeals, 946 F.Supp. 1225 (E.D. Va. 1996); Western Presbyterian Church Board of Zoning Adjustment, 849 F.Supp. 77 (D.D.C. 1994); Western Presbyterian Church Board of Zoning Adjustment 862 F.Supp. 538 (D.D.C. 1994)). In their oral presentation at the hearing on the temporary restraining order, however, the defendants argued that the Church’s decision to allow the homeless to sleep on its property was not protected by the Free Exercise Clause because Church officials were not out on the sidewalk in the middle of the night ministering to the homeless sleeping there. See Transcript at 25 (“The truth of the matter is, by their own affidavits, there are no services being rendered in the middle of the night. That is why there is no Constitutional question here, in our view.”). This argument misapprehends the plaintiffs’ position. The Church does not suggest that its activity is protected because allowing the homeless access to its property provides the Church with the opportunity to proselytize to the homeless throughout the time they are on that property. Rather, as Margaret Shafer has explained in her affidavits, the Church has developed a comprehensive program of trying to help the homeless as part of the Church’s overall religious mission. See Affidavit of Margaret Shafer 7-10 (Dec. 17, 2001); Affidavit of Margaret Shafer 2-9 (Dec. 19, 2001). It is because the Church’s work helping the homeless is central to the Church’s religious work that making its property available to the homeless is encompassed within the Church’s free-exercise rights. See, e.g., Western Presbyterian Church Board of Zoning Adjustment, 862 F.Supp. at 544 (holding that homeless-feeding program was protected by Free Exercise Clause because such charitable work is central to the Presbyterian Church). Alternatively, to the extent the defendants intend to have this court delve into the bona fides of the Church’s representation that its work with the homeless in fact is a significant tenet of its religious work, the law is clear that this sort of inquiry is inappropriate. See, e.g., Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 887-88 (1990) (discussing inappropriateness of court entertaining challenges to centrality of religious beliefs in assessing Free Exercise claims); accord Al-Amin v. City of New York, 979 F.Supp. 168, 171 (E.D.N.Y.) (same). C. The Defendants Have Failed to Identify Any Legally Sufficient Basis for Abridging the Church’s Free Exercise Rights. That the Church’s activity is protected by the Free Exercise Clause does not end the inquiry in this matter, as the Church recognizes that its Free Exercise rights are not absolute. Rather, given the Free Exercise rights implicated by the defendants’ actions, the question presented to the court is whether the City has identified interests sufficient to override the Church’s constitutional interests. On this point, the City contends that the burdens on the Church’s activity at issue in this case are not unconstitutional because they are incidental to the City’s enforcement of generally applicable and valid rules of conduct. Specifically, the City suggests it is doing nothing more than even-handedly enforcing state regulations governing adult-care facilities, enforcing public-nuisance law, and enforcing section 16-122 of the Administrative Code. Though the Supreme Court has held that Free Exercise burdens that are incidental to enforcement of general statutes or regulations usually do not amount to constitutional violations, see, e.g., Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), that principle does not aid the defendants here. This is because the state social- services regulations, public-nuisance law, and administrative code provision cited by the City simply do not reach the plaintiffs’ conduct. Thus, while the government under Smith might well have the power to enforce general laws and regulations regulating use of Church property and thus burdening the Church’s ability to allow the homeless to sleep on that property, it first has to adopt such laws and regulations. Because the laws and regulations cited by the City do not regulate the activity at issue here, they can provide no legal justification for the burden imposed on the plaintiffs’ Free Exercise rights. 1. The New York State Social Services Regulations Provide No Justification for the Defendants’ Actions. The principal’s argument offered by the defendants has been that the Church, by allowing the homeless to sleep on its property, is operating a shelter in violation of New York State regulations. This argument encounters two fundamental problems. First, as the court observed during the temporary-restraining-order hearing, nothing in the regulations cited by the defendants suggests the Church’s outdoor property constitutes an “adult care facility” as that term is used in 18 N.Y.C.R.R. § 491.2. See Transcript at 36-37. Moreover, the plaintiffs are unaware of any case law that construes the regulations in a manner that might bring an outdoor space such as this within these regulations. Consistent with this, common sense suggests that such a space cannot constitute a “facility.” Second, even in those instances in which a facility covered by the rules is operating in violation of them, nothing in the rules or case law of which the plaintiffs are aware suggests that any remedy exists beyond the enforcement provided by section 486.4. That section, which is entitled “Enforcement” initially provides that “[e]nforcement shall mean the action(s) undertaken or initiated by the [New York State Department of Social Services] to assure that adult care facilities are established and operated in compliance with all applicable provisions of law and regulation.” 18 N.Y.C.R.R. § 486.4(a). In subsection (b) it then outlines administrative and civil remedies that the Department can take to remedy alleged violations. Nothing it that scheme suggests any other remedies — including the NYPD’s remedy of threatening with arrest homeless persons who might be at such facilities – and the plaintiffs are unaware of any case law suggesting to the contrary. See Mixon v. Grinker, 627 N.Y.S.2d 668, 670 (1st Dept., 1995) (“The City’s new program was not immediately implemented due to the concerns raised by the State Department of Social Services (“DSS”), which is responsible for the certification, oversight and regulation of all adult shelters within New York (see, 18 N.Y.C.R.R. § 485 et seq.”). 2. Public Nuisance Considerations Provide No Justification for the Defendants’ Actions. The defendants claim that the plaintiffs have created a public nuisance that the City of New York is authorized to abate. That argument is without merit and cannot justify the defendants’ actions. There is simply no basis for the claim that sleeping outdoors on private property, next to a sidewalk, creates a public nuisance as that term is understood in New York common law and statutory provisions. a. Sleeping outdoors on private property does not constitute a public nuisance. The concept of public nuisance is defined both in case law and by statute. A public nuisance “consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons.” Greentree at Murray Hill Condo. v. Good Shepherd Episcopal Church, 146 Misc.2d 500, 511, 550 N.Y.S.2d 981, 988 (Sup. Ct. 1989) (citations and internal quotations omitted). N.Y. Admin. Code § 17-142 states that the term “nuisance”: shall be held to embrace public nuisance, as known at common law or in equity jurisprudence; whatever is dangerous to human life or detrimental to health; whatever building or erection, or part or cellar thereof, is overcrowded with occupants, or is not provided with adequate ingress or egress to and from the same or the apartments thereof, or is not sufficiently supported, ventilated, sewered, drained, cleaned or lighted in reference to its intended or actual use; and whatever renders the air or human food or drink, unwholesome. All such nuisances are hereby declared illegal. The legal concept of public nuisance was designed to prevent the creation of situations that would be dangerous to the safety and well being of the public. Examples of public nuisances include: operating an unreasonably odorous asphalt storage facility (State of New York v. Monoco Oil Co., 185 Misc.2d 742, 713 N.Y.S.2d 440 (Sup. Ct. 2000)); operating a noisy racetrack (Hoover v. Durkee, 212 A.D.2d 839, 622 N.Y.S.2d 348 (3d Dep’t 1995)); and polluting a river (Leo v. General Electric Co., 145 A.D.2d 291, 538 N.Y.S.2d 844 (2d Dep’t 1989)). Plaintiffs are aware of no New York case that has held that sleeping outdoors on private property constitutes a public nuisance. Indeed, there are two reported New York State decisions holding that the operation of a shelter does not constitute a public nuisance. Greentree, 550 N.Y.S.2d at 988; DeStefano v. Emergency Housing Group, Inc., 281 A.D.2d 449, 451, 722 N.Y.S.2d 35, 37 (2d Dep’t 2001) (holding that homeless shelter was not a public nuisance). There are several reasons why Defendants’ contention that sleeping outdoors on private property constitutes a public nuisance is inconsistent with the very definition of “public nuisance”. First, Defendants state that the “health and safety of the homeless who sleep on the sidewalks outside the church is profoundly, negatively compromised by their exposure to the elements, the lack of sanitary facilities, lack of heat, water and electricity and the lack of any measure of security.” (Defs’ TRO Br. 9.) That is insufficient to create a public nuisance. A public nuisance arises when one person creates a condition that is hazardous to the health or safety of the general public at large. See Greentree, 550 N.Y.S.2d at 988 (“there is no allegation that the [homeless shelter] offends, interferes with, or causes damage to the general public at large in the exercise of rights common to all . . . .” (emphasis in original). Here, Defendants have asserted that the homeless, by choosing to sleep on the church’s private property outdoors, are endangering their own health and safety. Defendants have not asserted that the health or safety of anyone else, including pedestrians on 55th Street, is in any way affected — let alone endangered — by the homeless sleeping on the church’s property. The defendants cannot make out a legally cognizable claim that the homeless have created a public nuisance when all they have been alleged to have done is to make a choice that endangers no one but themselves. Id. Second, the defendants argue that sleeping on the private section of the sidewalk constitutes “interfering with the use by the public of a public place” and is therefore a public nuisance. That argument presupposes that the private property at issue is in fact a “public place” to which the public is entitled to unfettered access and use. The record does not support that assertion. The church has never relinquished its claim over its private property adjacent to the sidewalk on 55th Street and has never opened that private property to unrestricted public use. In fact, the Church has continuously exercised dominion over its private property, both by the placement of large planters and by allowing the homeless to sleep on its private property. If, in fact, Defendants were to succeed on their claim that sleeping on the church’s private property interferes with the “public’s use” of a “public place”, thereby constituting a public nuisance, then any use by the church of its own private property that interferes with pedestrian traffic would also constitute a public nuisance, including the placement of planters, tables, benches or other items that might “interfere” with pedestrian traffic. That result is clearly not contemplated by the public nuisance statute or common law. b. Even if sleeping outdoors on private property constitutes a public nuisance, the City has no basis for arresting the homeless. There are two statutory provisions criminalizing nuisance, criminal nuisance in the first and second degree — neither of which is applicable here. Criminal nuisance in the first degree occurs when a person knowingly maintains a place where persons engage in the unlawful sale of controlled substances. N.Y. Crim. Proc. Law § 240.46. Criminal nuisance in the second degree occurs when a person knowingly or recklessly creates or maintains a condition that endangers the safety or health of a considerable number of persons or knowingly maintains a place where persons gather for purposes of engaging in unlawful conduct. N.Y. Crim. Proc. Law § 240.45. Clearly, neither of those provisions applies to the church or the homeless, both in terms of the criminal intent required or the actus reus. Therefore, as no criminal offense has been alleged to be committed, the police are not authorized to arrest the homeless people for creating a public nuisance. Defendants’ argument that § 435 of the New York City Charter authorizes the police to arrest the homeless people in order to protect their health, safety and welfare, is both illogical and without merit because nothing in § 435 authorizes arresting the individuals who the police are claiming to protect. Moreover, nothing in § 435 overrides the well-established principle that a criminal offense must be committed in order to justify an arrest, nor does § 435 criminalize offenses that are otherwise civil ones. In any event, the case law strongly supports the view that alleged public nuisances similar to those alleged here are civil as opposed to criminal matters. See People v. Daguiar, 166 Misc.2d 123, 127, 631 N.Y.S.2d 801, 804-5 (Crim. Ct. 1994) (holding that criminal nuisance statute did not apply to obstruction of traffic, citing the “unfairness, indeed the practical impossibility, of imposing criminal liability for what is essentially a civil action in equity . . . .”), citing People v. Markovitz, 102 Misc.2d 575, 579, 423 N.Y.S.2d 996, 998 (Crim. Ct. 1979) (“While the Penal Law always recognized that a nuisance actionable in equity might constitute such a danger to the public at large as to render it liable to prosecution as a crime (cf. former Penal Law § 1530), the criminal courts were loathe to enforce what was basically a civil remedy.”)); People v. Griswald, 170 Misc.2d 38, 41, 648 N.Y.S.2d 901, 903 (Cty. Ct. 1996) (“[I]n light of the specific intent required for criminal nuisance, a court should not impose criminal liability when a particular case involves what is essentially a civil action in equity to abate a public nuisance”) (citations omitted). 3. Section 16-122(b) of The Administrative Code Provides No Justification for the Defendants’ Actions. Finally, the defendants rely upon section 16-122(b) of the New York City Administrative Code, which provides, It shall be unlawful for any person, such person’s agent or employee to leave, or to suffer or permit to be left, any box, barrel, bale of merchandise or other movable property whether or not owned by such person, upon any marginal or public street or any public place or to erect or cause to be erected thereon any shed, building or other obstruction. This section provides no justification for the defendants’ action for two reasons. As an initial matter, the defendants have not cited and the plaintiffs are otherwise unaware of any New York State judicial decision construing section 16-122(b) to reach tents or cardboard boxes. Absent such a decision, a common sense reading of the section and its use of the terms “shed, building or other obstruction” would not seem to reach the out-of-the-way cardboard boxes and small tents used by the homeless at the Church, as the court originally concluded at the temporary-restraining-order hearing. See Transcript at 37. Second, even if this case did involve the type of structure encompassed within the section, the defendants have failed to establish that the section reaches structures on private property such as that at issue here. The only case the defendants cite — and the only case of which the plaintiffs are aware — is Betancourt v. Giuliani, which involved an application of section 16-122 to a person who had been observed sleeping in cardboard boxes in a public park in New York City. See 2000 WL 1877071 * 1 (S.D.N.Y. Dec. 26, 2000), appeal pending. This statute does not apply to the case before this Court because at issue are structures solely on private, not public, property. The language of the statute includes “marginal and public streets”, not “private streets”. The legislature knew how to make the distinction between public and private streets, as evidenced from other sections of the Code. See, e.g., Administrative Code § 19-169.2(a)(3) (applying to private streets). Therefore, the limitation of § 16-122 to public streets strongly suggests that the section was not intended to apply to private streets or other private property. To interpret § 16-122 to include private property, such as the property at issue here, would bar the Church from being able to place a box, barrel or bale of merchandise on its own private property. Such an interpretation would also bar the church from extending the walls of the church to the edge of its property or to erect a fence that would bar pedestrian traffic. All of those results are unreasonable and are not what is encompassed by the statute. The defendants have never claimed that the placement of large planters on the church’s private property, which is an “obstruction” of sorts, would violate § 16-122. If the Church is well within its rights to place planters, benches, boxes or barrels on its own private property, then it follows that the Church is well within its rights to allow other individuals to place boxes or other items on church property. The placement of objects on the church’s private property with the church’s permission does not and cannot violate § 16-122. The defendants’ attempt to use the definition of “public place” contained elsewhere in the Administrative Code is misguided because they are using definitions that are plainly not applicable to the statute at issue. For example, Defendants (at TRO Br. 9) quote part of the definition of “public place” from a part of the Code dealing with consumption of alcoholic beverages, section 10-125(a)(2): “A place to which the public or a substantial group of persons has access including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city . . . . ” However, Defendants omitted the rest of the definition, which states, “except that the definition of a public place shall not include those premises duly licensed for the sale and consumption of alcoholic beverages on the premises or within their own private property . . . . ” (emphasis added). Not only does this definition of “public place” specifically exclude private property, but it is also obviously inapplicable to a statute about obstructions on public streets. “Public place” has different meanings depending on the purpose for which it is used; in § 17-778, regarding the availability of resuscitation equipment, “public place” is defined as a “restaurant, bar, theater or health club”. Obviously, it would make no sense if § 16-122 were read to bar the placement of a box in a “restaurant, bar, theater or health club.” While § 16-122 does not have a definition of “public place” of its own, it is clear from the plain meaning of the statute itself that Defendants cannot extend the prohibition on boxes, barrels or other obstructions to private property such as the church property at issue here. CONCLUSION For all the foregoing reasons, the plaintiffs urge the court to grant their request for a preliminary injunction. Respectfully submitted, NEW YORK CIVIL LIBERTIES UNION FOUNDATION ________________________________ CHRISTOPHER DUNN (CD-3991) ARTHUR EISENBERG 125 Broad Street, 17th Floor New York, N.Y. 10004 (212) 344-3005, ext. 226 THE LAW OFFICES OF JONATHAN ROBERT NELSON JONATHAN ROBERT NELSON 20 Exchange Place, 43rd Floor New York, N.Y. 10005 (212) 593-5775 Of Counsel Katherine L. Pringle FRIEDMAN KAPLAN SEILER & ADELMAN, LLP 875 Third Avenue New York, N.Y. 10022 Kenneth E. Lee (KL-6718) Charles J. Ha (CH-0325) Worldwide Plaza, 41st floor 825 Eighth Avenue New York, NY 10019 Dated: December 27, 2001 New York, N.Y. CERTIFICATE OF SERVICE I hereby certify that on December 27, 2001, I caused the attached Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction to served by facsimile and by United States First Class Mail on the following counsel of record: Daniel Connolly Special Counsel New York Law Department 59 Maiden Lane New York, N.Y. 100038 FAX: (212) 232-4621 __________________________ CHRISTOPHER DUNN